Policing – Need to Evolve and Change Tracks

 

Law In Motion – 7

Rights And Duties Of Citizens

                    Continuing where we left, let us explore the ‘duties’ aspect further. Besides citizens, there are other categories of people who have certain duties cast upon them by the CrPC.

Section 40. Duty of officers employed in connection with the affairs of a village to make certain report.

 

            This provision obligates every person employed in connection with affairs of a village to report (shall forthwith communicate) to the nearest O/C of a police station or magistrate (whichever is nearer) the following:

 

·        the permanent or temporary residence of any notorious receiver or vendor of stolen property in or near such village;

 

·        the resort to or the passage through such village of any person whom he knows, or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender;

 

·        the commission of, or intention to commit, in or near such village any non-bailable offence or any offence like:

o   being member of an unlawful assembly;

o   Anyone joining unlawful assembly armed with deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly;

o   Anyone joining or continuing in unlawful assembly, knowing it has been commanded to disperse;

o   Rioting i.e., any plans of use of force or violence by an unlawful assembly, or by any member thereof, in prosecution of the common object;

·        Anyone involved in or guilty of rioting, armed with deadly weapon or with anything which, used as a weapon of offence, which is likely to cause death.

·        the occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances or the discovery in or near such village of any corpse or part of a corpse raising a reasonable suspicion that a non-bailable offence has been committed in respect of such person;

 

·        the commission of, or intention to commit, at any place out of India near such village any act which, if committed in India, would be an offence punishable under the Indian Penal Code;

 

·        any matter likely to affect the maintenance of order or the prevention of crime or the safety of person or property regarding which the District Magistrate or special order made with the previous sanction of the State Government, has directed him to communicate information.

 

In this connection, “village" includes village-lands and the words "officer employed in connection with the affairs of the village" means a member of the panchayat of the village and includes the headman and every officer or other person appointed to perform any function connected with the administration of the village. This also would include, in case of Nagaland Village Council Members or Gaon Buras (GBs) or Special Police Officers or even Village Guards etc.

 

Section 43. Arrest By Private Persons

                    There may be circumstances where an ordinary citizen may be confronted by a situation where he needs to effect an arrest, either to prevent a crime or to catch a criminal or recover proceeds of crime or prevent more damage from taking place. The CrPc empowers ‘private persons’ to effect arrests. The CrPC thus provides:

·        Any private person may arrest or cause to be arrested

·        Any person who in his presence commits a non-bailable and cognizable offence, or

·        Any proclaimed offender.

Procedure upon Arrest – for Public

                          Once the ‘private person’ has effected the arrest, he/she is mandatorily (shall) required without unnecessary delay,

·        To make over or cause to be made over

·        The person so arrested to a police officer, or

·        In the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

Therefore, the power of the private citizen is to arrest and either inform a police officer abut such arrest/detention/restraint or take him to the nearest police station in his/her custody. However, whether a police officer is ‘absent’ is a subjective matter and even a temporarily absence could be enough justification for arrest and transportation of the arrested person to the nearest police station.

 

Again, the law provides for taking to the nearest police station, and not necessarily the police station which may have jurisdiction over the case/matter. Once arrested and conveyed to the nearest police station, it is the duty of the police station to look at the issues of criminality or jurisdiction or the person arrested.

 

However, whenever a person arrested by the private person/public is conveyed to the police officer or police station, it is prudent and practical to insist on a GD Entry in this regard to avoid any future complications. Such complications may arise due to issues of assault or even illegal arrest/detention at police station or even false allegations. Therefore, whenever the private persons arrest and convey any person, a short complaint either in writing or orally should be registered or insisted upon by public. As mention in an earlier LIM piece, the police is obligated to make a GDE and provide a copy free of cost to the complainant/public.  

 

Procedure upon Arrest by Public – for Police

Once the private person/public have handed over the arrested/detained person to the police station, the police officer concerned (it may actually be a beat constable or a beat patrolling party), may re-arrest the person, if the person falls within the provisions of Section 41 of CrPC which gives power to police to arrest without warrant. It may be mentioned here that this power is with all police officers, irrespective of rank  - even a Constable can thus effect an arrest.

 

Section 41. When police may arrest without warrant:

Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

·        who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists; or

·        who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house- breaking; or

·        who has been proclaimed as an offender either under CrPC or by State Govt; or

·        in whose possession anything is found which may reasonably be suspected to be stolen property;

·        who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

·        who is suspected deserter from any of the Armed Forces of the Union; or

·        who has been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, for extradition; or

·        for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

 

                    Thus, these provisions are vast enough for any civilian to intervene to help prevent an offence. However, the police has to be informed immediately. The provisions are so vast that private person can help prevent commission of offences because the police can arrest (re-arrest when arrest has been made by private individuals) without warrant in cases under section 41 CrPC when the offences are non-bailable and cognizable.

                    In practice, however, to help prevent an offence, it would be prudent to inform the police immediately and perhaps even before effecting the arrest/restraint. The private persons may also take the village authorities etc. into confidence to help, wherever possible.

Caution

                    A word of caution here is that please use only as much restraint/force as may be necessary to prevent the offence from taking place or preventing the escape of the offender as the case may be. Acting in self-defence is a defence but overdoing can be counter-productive.

                    We will next examine what happens post-arrest and rights and obligations of police as well as citizens.

 

 

 

 

 

 

 

 

 

 

 

 

 

45. Protection of members of the Armed Forces from arrest.

(1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.

(2) The State Government may, by notification, direct that the provisions of sub- section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section shall apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.

46. Arrest how made.

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

47. Search of place entered by person sought to be arrested.

(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress to such place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance: Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

(3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

48. Pursuit of offenders into other jurisdictions. A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.

49. No unnecessary restraint. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

50. Person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

51. Search of arrested person.

(1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the Person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing- apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person.

(2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.

52. Power to size offensive weapons. The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested.

53. Examination of accused by medical practitioner at the request of police officer.

(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub- inspector,

and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Explanation.- In this section and in section 54," registered medical practitioner" means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956 ) and whose name has been entered in a State Medical Register.

54. Examination of arrested person by medical practitioner at the request of the arrested person. When a person who is arrested, whether on a charge or otherwise alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.

55. Procedure when police officer deputes subordinate to arrest with out warrant.

(1) When any officer in charge of a police station or any police officer making an investigation under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order.

(2) Nothing in sub- section (1) shall affect the power of a police officer to arrest a person under section 41.

56. Person arrested to be taken before Magistrate of officer in charge of police station. A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to

bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

57. Person arrested not to be detained more than twenty- four hours. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate' s Court.

58. Police to report apprehensions. Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub- divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.

59. Discharge of person apprehended. No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.

60. Power, on escape, to pursue and retake.

(1) If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India.

(2) The provisions of section 47 shall apply to arrests under sub- section (1) although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest.